Full Judgment Text
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PETITIONER:
STATE OF MAHARASHTRA & ORS.
Vs.
RESPONDENT:
SANTOSH SHANKAR ACHARYA
DATE OF JUDGMENT: 01/08/2000
BENCH:
G.B. Pattanaik, J. Umesh C. Banerjee, J.
JUDGMENT:
PATTANAIK,J.
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Leave granted.
All these appeals have been filed by the State of
Maharashtra assailing the correctness of the decision of the
Full Bench of Bombay High Court, Bench at Nagpur, answering
the question referred to, in favour of the detenu and
against the State. The question that had been referred to
the Full Bench for being answered is, whether in case of an
order of detention by an officer under sub-section (2) of
Section 3 of Maharashtra Prevention of Dangerous Activities
of Slumlords, Boot-leggers, Drugs Offenders and Dangerous
Persons Act, 1981, (hereinafter referred to as Maharashtra
Act), non communication to the detenu that he has a right
of making a representation to the Detaining Authority
constitutes an infraction of a valuable right of the detenu
under Article 23(5) of the Constitution, and as such,
vitiates the order of detention. There is no dispute that
in all these cases the order of detention had been passed
not by the State Government under Section 3(1) of the
Maharashtra Act but by the concerned officer empowered by
the State Government under sub-section (2) of Section 3 of
the Act. It is also not disputed that while communicating
the detenu the grounds of detention it has not been
indicated therein that he has a right to make a
representation to the Detaining Authority, though in the
said communication it was mentioned that the detenu could
make a representation to the State Government as provided
under Section 8(1) of the Maharashtra Act. The Division
Bench of Bombay High Court on this aspect had taken
inconsistent views and, therefore, the matter had been
referred to the Full Bench. The Full Bench relying upon the
Constitution Bench decision of this Court in Kamlesh Kumar
Ishwardas Patel vs. Union of India (1995) 4 Supreme Court
Cases-51, and on thorough analysis of the different
provisions of the Maharashtra Act came to the conclusion
that an order issued under sub-section (2) of Section 3 of
the said Act cannot remain valid for more than 12 days
unless the same is approved by the State Government as
provided under sub-section (3) of Section 3 of the said Act.
It was further held that until the order is approved by the
State Government in exercise of its power under sub-section
(3) of Section 3, the Detaining Authority who had issued the
order of detention under sub-section (2) retains the power
of entertaining a representation and annul, revoke or modify
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the same as provided under Section 14(1) of the Act read
with Section 21 of the Bombay General Clauses Act. It has
further been held that failure on the part of the Detaining
Authority in a case where order of detention is issued under
sub-section (2) of Section 3 to the detenu that he has a
right to make a representation constitutes an infraction of
the rights guaranteed under Article 22(5) , and as such, the
detention becomes invalid on that score. This conclusion is
based upon the ratio of the Constitution Bench decision of
this Court in Kamlesh Kumars case (supra) even though in
Kamlesh Kumars case the Court was considering a case of
detention under the provisions of Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act (for
short COFEPOSA). Following the opinion on the question of
law referred, the Division Bench of the High Court having
set aside the order of detention the State Government is in
appeal before us.
Mr. Deshpande, the learned counsel appearing for the
State of Maharashtra and Mrs. Ramani, learned counsel
appearing for the State Government in some of these appeals
vehemently contended that the decision of Kamlesh Kumars
case (supra) will have no application inasmuch as the
provisions of COFEPOSA are entirely different from the
provisions of Maharashtra Act, with which we are concerned
in the present appeals and the High Court, therefore,
committed error in following Kamlesh Kumars case (supra)
and answering the point of reference. According to Mr.
Deshpande the powers under sub-section (2) of Section 3
being a delegated power, the delegatee could not exercise
any function once he uses power provided under sub-section
(2) and passes an order of detention. The learned counsel
contends that in view of language of sub-section (3) of
Section 3 the officer who issues an order of detention under
sub-section (2) being required to forthwith report the fact
of detention to the State Government together with the
grounds on which the order has been made, the State
Government becomes the detaining authority thereafter, and
therefore, it is not necessary for him to communicate to the
detenu that he could make a representation to the detaining
authority nor does the detaining authority possesses such
power. It is the contention of the learned counsel for the
State that in view of specific provision in sub-section (1)
of Section 8, the earliest opportunity of representation
could be made available to the detenu to make a
representation against the order of detention to the State
Government by implication, the detaining authority does not
possess any such power, and as such, the High Court
committed error in coming to the conclusion that the
detaining authority possess the power of rescinding an order
of detention issued until the said order is approved by the
State Government within a period of 12 days from the date of
issuance of an order of detention. According to the learned
counsel the provisions of Maharashtra Act stand on a
different footing than the provisions of COFEPOSA and,
therefore, the ratio in Kamlesh Kumars case (supra) will
have no application at all.
The learned counsel appearing for the
respondents-detenues on the other hand contended, that a
plain reading of Section 14, engrafting the provisions of
Section 21 of General Clauses Act, into it making explicitly
clear that the legislatures purposely retained the power of
the officer who issues an order of detention to deal with
the same in terms of Section 21 of the Bombay General
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Clauses Act, and that being the position, non-communication
of the fact that the detenu could make a representation to
the detaining authority so long as the order of detention
has not been approved by the State Government constitutes an
infraction of valuable right of detenu under Article 22(5)
and, therefore, Full Bench of the High Court was fully
justified in answering the reference made to it.
An analysis of the provisions of the Maharashtra Act
indicates that Section 3 empowered the State Government to
issue an order of detention under sub- section (1) and the
District Magistrate or Commissioner of Police on being
authorised by the State Government could issue an order of
detention under sub-section(2). When an officer exercises
power and issues orders of detention under sub-section (2)
then he is duty bound to report forthwith the fact of
detention and the grounds on which the order of detention is
made and/or other particulars to the State Government. On
receipt of the report, the grounds and the particulars from
the concerned officer the State Government is required to
approve the order of detention within 12 days, and if it is
not approved within 12 days then it automatically lapses.
Section 3 of the Maharashtra Act is quoted herein below in
extenso for better appreciation of the analysis we have thus
made:-
Section 3. (1) The State Government may, if satisfied
with respect to any person that with a view to preventing
him from acting in any manner prejudicial to the maintenance
of public order, it is necessary so to do, make an order
directing that such person be detained.
(2) If, having regard to the circumstances prevailing
or likely to prevail in any area within the local limits of
the jurisdiction of a District Magistrate or a Commissioner
of Police, the State Government is satisfied that it is
necessary so to do, it may, by order in writing, direct,
that during such period as may be specified in the order
such District Magistrate or Commissioner of Police may also,
if satisfied as provided in sub-section (1), exercise the
powers conferred by the said sub-section:
Provided that the period specified in the order made by
the State Government under this sub-section shall not, in
the first instance, exceed three months, but the State
Government may, if satisfied as aforesaid that it is
necessary so to do, amend such order to extend such period
from time to time by any period not exceeding three months
at any one time.
(3) When any order is made under this section by an
officer mentioned in sub- section (2), he shall forthwith
report the fact to the State Government, together with the
grounds on which the order has been made and such
particulars as, in his opinion, have a bearing on the
matter, and no such order shall remain in force for more
than twelve days after the making thereof, unless, in the
meantime, it has been approved by the State Government.
Section 8 specifically provides that a detenu must be
communicated the grounds on which the order of detention has
been made as soon as may be, but not later than 5 days from
the date of detention. This mandatory obligation is both on
the authority who passes an order of detention either under
sub-section (1) or under sub-section (2). In other words,
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if the State Government issues an order of detention under
sub- section (1), or if the officer empowered issues an
order of detention under sub-section (2) then the same must
be communicated to the detenu not later than 5 days from the
date of detention. It is no doubt true that in latter part
of sub-section (1) of Section 8 it has been categorically
mentioned that an earliest opportunity of making a
representation against the order to the State Government
should be afforded. But that does not make the State
Government the detaining authority as soon as the factum of
detention is communicated by the person concerned exercising
power under sub-section (2) as provided under sub-section
(3) thereof nor does it take away the power of entertaining
a representation from a detenu so long as the order of
detention has not been approved by the State Government.
Section 8(1) of Maharashtra Act is quoted herein below in
extenso:-
Section8(1): When a person is detained in pursuance
of a detention order, the authority making the order shall,
as soon as may be, but not later than five days from the
date of detention, communicate to him the grounds on which
the order has been made and shall afford him the earliest
opportunity of making a representation against the order to
the State Government.
It is undoubtedly true that Section 8(1) in terms,
provides for a representation of being made to the State
Government but, in a case where an officer other than the
State Government issues an order of detention under sub
section (2) of Section 3 his powers as the detaining
authority to deal with the representation under the
provisions of Section 21 of the Bombay General Clauses Act,
1904, cannot be said to be taken away merely because Section
8(1) specifically provides for making a representation to
the State Government. Section 14(1) of the Maharashtra Act
is quoted herein below in extenso for better appreciation of
the point in issue together with Section 21 of the Bombay
General Clauses Act, 1904:-
Section 14(1): Without prejudice to the provisions of
Section 21 of the Bombay General Clauses Act, 1904, a
detention order may, at any time, be revoked or modified by
the State Government, notwithstanding that the order has
been made by an officer mentioned in sub-section(2) of
section 3."
Section 21: Where by any Bombay Act (or Maharashtra
Act), a power to issue notifications, orders, rules or
by-laws is conferred, then that power includes a power,
exercisable in the like manner and subject to the like
sanction and conditions (if any), to add to, amend, vary or
rescind any notifications, orders, rules or by-laws, so
issued.
If the contention of Mr. Deshpande to the effect that
the moment an order of detention issued by an order under
sub-section (2) of Section 3 of the Act is communicated to
the State Government under sub-section (3) of the said
Section thereof the State Government becomes the detaining
authority, and therefore, the power under Section 21 of the
Bombay General Clauses Act cannot be exercised by the said
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detaining authority is correct, then it has to be found out
as to under which contingency Section 14 of the Maharashtra
Act would apply. To our query neither Mr. Deshpande nor
Mrs. Ramani, learned counsel appearing for the State
Government could indicate any situation when such power
could be exercised. It is too well known a principle of
construction of statutes that the legislature engrafted
every part of a statute for a purpose and the legislative
intention is that every part of the statute should be given
effect. The legislature is deemed not to waste its words or
to say anything in vain and a construction which attributes
redundancy to the legislature will not be accepted except
for compelling reasons. We are cognizant of the principle
ex majori cautela but it is difficult for us to apply the
said principle to Section 14 of the Maharashtra Act and even
hold the same to be tautologous in as much as it has never
been shown as to what was the necessity for the legislature
to protect the power under Section 21 of the Bombay General
Clauses Act, to an order of detention made under the
Maharashtra Act. The only logical and harmonious
construction of the provisions would be that in a case where
an order of detention is issued by an officer under
sub-section (2) of Section 3 of the Act, notwithstanding the
fact that he is required to forthwith report the factum of
detention together with the grounds and materials to the
State Government and notwithstanding the fact that the Act
itself specifically provides for making a representation to
the State Government under Section 8(1), the said detaining
authority continues to be the detaining authority until the
order of detention issued by him is approved by the State
Government within a period of 12 days from the date of
issuance of detention order. Consequently, until the said
detention order is approved by the State Government the
detaining authority can entertain a representation from a
detenu and in exercise of his power under the provisions of
Section 21 of Bombay General Clauses Act could amend, vary
or rescind the order, as is provided under Section 14 of the
Maharashtra Act. Such a construction of powers would give a
full play to the provisions of Section 8 (1) as well as
Section 14 and also Section 3 of the Maharashtra Act. This
being the position, non-communication of the fact to the
detenu that he could make a representation to the detaining
authority so long as the order of detention has not been
approved by the State Government in a case where an order of
detention is issued by an officer other than the State
Government under sub-section (2) of Section 3 of the
Maharashtra Act would constitute an infraction of a valuable
right of the detenu under Article 22(5) of the Constitution
and the ratio of the Constitution Bench decision of this
Court in Kamlesh Kumars case (supra) would apply
notwithstanding the fact that in Kamlesh Kumars case
(supra) the Court was dealing with an order of detention
issued under the provisions of COFEPOSA.
The counsel appearing for the State strongly relied
upon the decision of this Court in Veeramani vs. State of
Tamil Nadu (1994) 2 Supreme Court Cases 337, wherein an
order of detention had been issued under the provision of
Tamil Nadu Prevention of Dangerous Activities of
Bootleggers, Drug-Offenders, Forest- Offenders, Goondas,
Immoral Traffic Offenders and Skum Grabbers Act, 1982
(hereinafter referred to as Tamil Nadu Act). According to
the learned counsel for the State the provisions of the said
Act are in pari- materia with the Maharashtra Act with which
we are concerned in the present appeals and this Court in
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Veeramani (supra) had recorded a conclusion that the
question of detaining authority revoking the order after
such approval does not arise and the power preserved by
virtue of the provisions of General Clauses Act is no more
exercisable. In the aforesaid case the Court considered
several earlier decisions of the Court under the provisions
of COFEPOSA and was of the view that the observations made
therein could not apply to cases arising under other
Preventive Detention Act including the Tamil Nadu Act.
Veeramani (supra) also relied upon the judgment of this
Court in State of Maharashtra vs. Sushila Mafatlal Shah
(1988) 4 SCC 490, for the ultimate conclusion. In our
considered opinion this decision does not assist the
respondents in any manner inasmuch as the Court in Veeramani
(supra) has considered the situation that emerged subsequent
to the date of approval of the order of detention by the
State Government and not prior thereto. As has been stated
earlier, it may be difficult to contend that even after the
approval of the order of detention by the State Government
the detaining authority would still be competent to
entertain and dispose of a representation in exercise of the
powers under Section 21 of Bombay General Clauses Act, but
this decision cannot be said to be an authority to hold that
even before the approval of the order of the detaining
authority the detaining authority does not possess the power
under Section 21 of the Bombay General Clauses Act. Such a
conclusion would make the entire provision of Section 14 of
the Maharashtra Act redundant and otiose. Then again the
Court had fully relied upon the observations of this Court
in State of Maharashtra vs. Sushila Mafatlal Shah (supra)
and the judgment of Sushila Mafatlal Shah (supra) has been
directly considered and overruled in the Constitution Bench
decision in Kamlesh Kumars case(supra). It would also be
appropriate to notice that even in Raj Kishore Prasad vs.
State of Bihar (1982) 3 Supreme Court Cases 10, though
the Court did not entertain the contention that detaining
authority under the provisions of National Security Act has
a right to consider the representation on the ground that
the order of detention had been approved by the State
Government yet it had been observed that constitutionally
speaking a duty is cast on the detaining authority to
consider the representation which would obviously mean that
if such representation is made prior to the approval of the
order of detention by the State Government. This being the
position, it goes without saying that even under the
Maharashtra Act a detenu will have a right to make a
representation to the detaining authority so long as the
order of detention has not been approved by the State
Government and consequently non-communication of the fact to
the detenu that he has a right to make representation to the
detaining authority would constitute an infraction of the
valuable constitutional right guaranteed to the detenu under
Article 22(5) of the Constitution and such failure would
make the order of detention invalid. We, therefore, see no
infirmity with the impugned judgment of the Full Bench of
the Bombay High Court to be interfered with by this Court.
These appeals accordingly fail and stand dismissed.
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